Citation Nr: 0208863
Decision Date: 08/01/02 Archive Date: 08/12/02
DOCKET NO. 98-12 106A ) DATE
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THE ISSUES
1. Whether an April 1998 decision of the Board of Veterans'
Appeals which granted service connection for
spondylolisthesis at L5-S1 should be revised or reversed on
the grounds of clear and unmistakable error.
2. Whether an April 1998 decision of the Board of Veterans'
Appeals which denied entitlement to vocational rehabilitation
and training under Chapter 31, Title 38, United States Code,
should be revised or reversed on the grounds of clear and
unmistakable error.
ATTORNEY FOR THE BOARD
Andrew E. Betourney, Counsel
INTRODUCTION
The veteran served on active duty from September 1969 to June
1987.
This matter comes before the Board of Veterans' Appeals
(Board) from a motion by the veteran seeking a revision of
the Board's two April 1998 decisions on the grounds of clear
and unmistakable error.
The Board notes that it appears the veteran may be raising
additional issues, though this is unclear. The Board may not
entertain an application for review on appeal unless it
conforms to the law. 38 U.S.C.A. § 7108 (West 1991). Under
the provisions of 38 U.S.C.A. § 7111 (West Supp. 2001), the
Board may review previous Board decisions based on CUE, as it
will do in this case. For all other claims, under the
provisions of 38 U.S.C.A. § 7105(a) (West 1991), an appeal to
the Board may be initiated by a notice of disagreement and
completed by a substantive appeal after a statement of the
case is furnished to the veteran. In essence, the following
sequence is required: There must be a decision by the
Regional Office (RO), the veteran must express timely
disagreement with the decision, the Department of Veterans
Affairs (VA) must respond by explaining the basis of the
decision to the veteran, and finally the veteran, after
receiving adequate notice of the basis of the decision, must
complete the process by stating his argument in a timely-
filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201,
20.202, and 20.203 (2001). However, the RO has not fully
adjudicated any other issue and the Board may not
unilaterally take jurisdiction of any additional claims. If
necessary, the veteran is requested to clearly indicate what
additional claims, if any, he wishes to pursue with the RO
(other than CUE with a prior Board decision). The RO will
then take appropriate action to adjudicate these claims, if
any. In any event, no other issue is before the Board at
this time.
FINDINGS OF FACT
1. In April 1998, the sole issues before the Board were
claims of entitlement to service connection for
spondylolisthesis at L5-S1 and entitlement to VA vocational
rehabilitation and training under Chapter 31, Title 38,
United States Code.
2. In a decision dated in April 1998, the Board concluded
that the veteran's spondylolisthesis at L5-S1, first
clinically evident in service, was attributable to low back
trauma incurred in service, and granted the veteran's claim
for service connection for this disorder.
3. In a second decision dated in April 1998, the Board noted
that the veteran's vocational rehabilitation counselor and a
Vocational Rehabilitation Panel had concluded that the
effects of the veteran's organic brain syndrome prevented him
from successfully pursuing his chosen vocational
rehabilitation program and becoming gainfully employed in an
occupation consistent with his abilities, aptitudes and
interests. Consequently, the Board found that achievement of
the veteran's chosen vocational goal was not reasonably
feasible for the veteran at that time, and denied the
veteran's claim for vocational rehabilitation and training
under Chapter 31, Title 38, United States Code.
4. The veteran's CUE motion has not set forth clearly and
specifically the alleged CUE, or errors, of fact or law, in
the Board's April 1998 decisions, or the legal and factual
basis for such allegations, or why the result would have been
manifestly different but for the alleged error.
CONCLUSION OF LAW
Because the requirements for a motion for revision of a
decision based on clear and unmistakable error have not been
met, the motion must be dismissed without prejudice to
refiling. 38 C.F.R. § 20.1404(b) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In April 1998, the Board issued two decisions. In the first
decision, the Board granted the veteran's claim for service
connection for spondylolisthesis at L5-S1. In the second
decision, the Board found that achievement of a vocational
goal was not currently feasible beyond any reasonable doubt.
The Board concluded that the evidence was compelling and
established beyond a reasonable doubt that attainment of the
veteran's chosen vocational goal was infeasible.
In May 1999, the moving party raised the issue of clear and
unmistakable error (CUE) in the Board's April 1998 decisions.
He contends, among other things, that the Board has
"neglected the law" and conspired against him. The precise
basis for this contention is not clear. To the extent that
the moving party's lengthy typewritten submissions to the
Board are comprehensible, it appears that the moving party
believes that the Board should have considered and granted
service connection for other disabilities within the first
April 1998 decision. In this regard, in extensive
correspondence to the Board, the moving party has referred at
length to a neck disorder, hearing loss, and left knee
instability. He also contends that criminal acts were
committed against him by VA, that VA officials have tampered
with records, and that VA's actions have shown evidence of
bias, racism and bigotry. He has also repeatedly accused VA
personnel of mismanagement, misrepresentation, arrogance,
inexperience, ignorance, incompetence, harassment, fraud,
medical improprieties, libel, and violations of numerous
federal laws.
As a preliminary matter, the Board notes that during the
pendency of the moving party's motion, the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096, now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107,
was enacted. VA issued regulations to implement the VCAA in
August 2001. 66 Fed. Reg. 45,620 (to be codified as amended
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The
amendments were effective November 9, 2000, except for the
amendment to 38 C.F.R. § 3.156(a) that is effective August
29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a),
the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. §
3.159(c)(4)(iii), VA stated that "the provisions of this
rule merely implement the VCAA and do not provide any rights
other than those provided in the VCAA." 66 Fed. Reg.
45,629. Accordingly, in general where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions likewise are satisfied.
In Livesay v. Principi, 15 Vet. App. 165 (en banc) (2001),
the Court held that the VCAA was not applicable to motions
alleging CUE in decisions of the Board. Accordingly, the
Board finds that the VCAA is not applicable to this motion as
a matter of law.
As noted above, the veteran has challenged the Board's April
1998 decisions on the grounds of CUE. 38 U.S.C.A. §§ 5109A
and 7111; 38 C.F.R. §§ 20.1400, 20.1403 (2000); VA O.G.C.
Prec. Op. 01- 98 (Jan. 13, 1998). These new statutory and
regulatory provisions permit a claimant to request review by
the Board to determine whether CUE exists in an appellate
decision previously issued by the Board, with a right of
review of such determinations by the Court.
The Board has original jurisdiction to determine whether CUE
exists in a prior final Board decision. Such review may be
initiated by the Board on its own motion or by a party to the
decision. 38 C.F.R. § 20.1400. A party disagreeing with the
Board's denial of a motion for revision based on CUE in a
prior Board decision can appeal that determination to the
Court. 38 U.S.C.A. § 7111; 38 C.F.R. §§ 20.1400, 20.1409(d).
The newly enacted regulations concerning evaluation of prior
Board decisions for CUE are explicit as to what constitutes
CUE. In general, it is noted that clear and unmistakable
error is a "very specific and rare kind of error," an error
"of fact or law, that when called to the attention of later
reviewers compels the conclusion, to which reasonable minds
could not differ, that the result would have been manifestly
different but for the error." See 38 C.F.R. § 20.1403; Fugo
v. Brown, 6 Vet. App. 40, 43 (1991). The type of errors
involved occur where the correct facts as they were known at
the time, were not before the Board, or where the statutory
and regulatory provisions extant at the time were incorrectly
applied. 38 C.F.R. § 20.1403(a). Examples of errors which
are not CUE include a change in a diagnosis, failure to
fulfill the duty to assist, disagreements as to the weighing
of evidence, and changes in the interpretation of statutes or
regulations. 38 C.F.R. § 20.1403(d) and (e). Essentially,
the claimant must assert more than a disagreement as to how
the facts were weighed or evaluated. See Russell v.
Principi, 3 Vet. App. 310, 313-314 (en banc) (1992).
The Court has consistently stressed the rigorous nature of
the concept of CUE. "Clear and unmistakable error is an
administrative failure to apply the correct statutory and
regulatory provisions to the correct and relevant facts; it
is not mere misinterpretation of facts." Oppenheimer v.
Derwinski, 1 Vet. App. 370, 372 (1991). "Clear and
unmistakable error requires that error, otherwise
prejudicial, must appear undebatably." Akins v. Derwinski,
1 Vet. App. 228, 231 (1991).
A motion to correct a Board decision for CUE must be reviewed
on the record and the law as they existed at the time that
the disputed decision was made. For Board decisions issued
on or after July 21, 1992, the record that existed when that
decision was make includes relevant documents possessed by
the Department of Veterans Affairs not later than 90 days
before such record was transferred to the Board for review in
reaching that decision, provided the documents could
reasonably be expected to be part of the record. 38 C.F.R. §
20.1403(b); see also Bell v. Derwinski, 2 Vet. App. 611
(1992).
The Board notes that while the law vests the Board with
original jurisdiction to determine whether CUE exists in a
prior final Board decision, the shape and expanse of that
review is controlled by statute and regulations. Motions for
review of prior Board decisions on the grounds of CUE are
adjudicated pursuant to the Board's Rules of Practice at 38
C.F.R. §§ 20.1400-1411. Pursuant to 38 C.F.R. § 20.1404(b),
a motion alleging CUE in a prior Board decision must set
forth clearly and specifically the alleged CUE, or errors, of
fact or law in the Board decision, the legal or factual basis
for such allegations, and why the result would have been
manifestly different but for the alleged error.
In August 1999, the Board issued a decision in which it
determined that the moving party had failed to specify
clearly an error of fact or law that would change the outcome
of the Board's April 1998 decision which granted service
connection for spondylolisthesis at L5-S1. The Board also
determined that the moving party had failed to set forth
clear and specific allegations regarding CUE in the April
1998 Board decision which addressed entitlement to vocational
rehabilitation. Therefore, the Board denied the motion for
revision of the Board's April 1998 decisions on the basis of
CUE, in accordance with the provisions of 38 C.F.R.
§ 20.1404(b) which were then in effect. The moving party
appealed the Board's determination to the U.S. Court of
Appeals for Veterans Claims (Court).
In an Order dated in November 2001, the Court vacated the
Board's August 1999 decision, and remanded the matter to the
Board for readjudication. In this Order, the Court noted
that subsequent to the filing of the parties' pleadings
before the Court, the United States Court of Appeals for the
Federal Circuit (Federal Circuit) decided Disabled American
Veterans et. al. v. Gober, 234 F.3d 682 (Fed. Cir. 2000). In
that determination, the Federal Circuit noted that the last
sentence of Rule 1404(b) provided that: "Motions which fail
to comply with the requirements set forth in this paragraph
shall be denied." The Federal Circuit found that the effect
of this last sentence, in conjunction with Rule 1409(c)
(which provides that once there is a final decision on a CUE
motion, subsequent motions relating to that Board decision on
that issue will be dismissed with prejudice) would be to
shield from CUE review any issue that was subject of a CUE
motion that is "denied" because the motion did not comply
with the pleadings requirements of Rule 1404(b). As a
result, the Board would never decide a particular CUE claim
on the merits as required in 38 U.S.C.A. § 7111(e), not
because the claimant failed to establish, substantively, his
CUE claim, but because of pleading defects. The Federal
Circuit then invalidated the last sentence of Rule 1404(b);
however, it upheld the other provisions of Rule 1404(b). Id.
at 698-99.
In response to this Court decision, VA published an interim
final rule, effective July 21, 2001, revising Rule 1404(b) to
provide that motions that fail to comply with the pleading
requirements for stating a CUE claim "shall be dismissed
without prejudice to refiling under this subpart." This
rule became final effective July 17, 2002. 66 Fed. Reg.
46,869-70 (July 17, 2002) (to be codified as amended at 38
C.F.R. §§ 20.1404(b), 20.1409(b)). The Board can identify
nothing in the decision of the Federal Circuit that fairly
can be construed as mandating that the Board decide on the
merits a CUE motion notwithstanding its failure to meet
minimum ministerial or pleading requirements. Quite the
contrary, the Federal Circuit was at pains to foreclose the
danger that defective pleadings would forfeit the moving
party's opportunity to obtain a decision on the merits of a
CUE claim.
The Board observes that pursuant to Karnas v. Derwinski, 1
Vet. App. 308 (1991), where the law or regulation changes
after a claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant normally applies,
absent Congressional intent to the contrary. In this case,
the Board finds that the revised regulations are more
favorable to the moving party, as the amended regulations
provide for a dismissal without prejudice to refiling, rather
than a denial, which is a final determination. The Board
shall therefore apply the revised regulations to the
veteran's motion.
With respect to the Board's April 1998 decision which
granted service connection for spondylolisthesis at L5-S1,
the Board finds that the moving party has failed to specify
clearly an error of fact or law that would change the
outcome. In this regard, the Board further observes that as
the Board's final decision was a grant of service
connection, the moving party has not expressly argued that
this benefit should be discontinued, even assuming that the
law and regulations contemplate such a circumstance. It
appears that the veteran believes that the Board should have
considered and granted service connection for other
disabilities within the first April 1998 decision. Assuming
this is his argument, it is obvious that this argument, even
if true, could not constitute a valid claim of clear and
unmistakable error, since there has been no final decision
by the Board as to these additional claims. 38 C.F.R.
§ 20.1401 (2001).
With respect to the Board's April 1998 decision which denied
the veteran's claim of entitlement to vocational
rehabilitation and training under Chapter 31, title 38,
United States Code, the Board finds that the moving party
has not set forth clear and specific allegations of clear
and unmistakable error, as is required under 38 C.F.R.
§ 20.1402(b). In this regard, unspecific and bare
allegations referring to alleged criminal activity and
conspiracies theories notwithstanding, after review of the
evidence of record, the Board concludes that the moving
party has not set forth specific allegations of CUE in
either fact or law within the April 1998 decision by the
Board. Accordingly, in the absence of such specific valid
allegations, he has not raised a valid claim of CUE and the
motion must be dismissed.
ORDER
The motion is dismissed without prejudice to refiling.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
Only a final decision of the Board of Veterans' Appeals may
be appealed to the United States Court of Appeals for
Veterans Claims. 38 U.S.C.A. § 7252 (West 1991 & Supp.
2002); Wilson v. Brown, 5 Vet. App. 103, 108 (1993) ("A
claimant seeking to appeal an issue to the Court must first
obtain a final BVA decision on that issue.") This
dismissal under 38 C.F.R. § 20.1404(a) (2001) is not a final
decision of the Board. 38 C.F.R. § 20.1409(b) (2001). This
dismissal removes your motion from the Board's docket, but
you may refile the motion at a later date if you wish.